Texas Governor Signs "Save Chik-fil-A" Law

On Monday, Texas Gov. Greg Abbott signed into law S.B. 1978 (full text) which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. According to KXAN News:

The bill was brought forward by Republicans after San Antonio City Council voted in March to exclude Chik-fil-A from having airport concessions in their city because of the fast-food chain's owners' record on LGBT issues, specifically over donations to the Fellowship of Christian Athletes, the Salvation Army, and a George youth home; whose leaders advocate for marriage to be between one-man and one-woman.

The law has become known as the "Save Chik-fil-A bill."

Justice Department Files Statement of Interest In Challenge To Maine's Exclusion of Parochial Schools From State Program

The Justice Department announced on Monday that it has filed a Statement of Interest in a suit brought in a Maine federal district court by parents and students claiming unconstitutional discrimination against religious schools.  In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  The suit challenges the Maine law that bars paying tuition for students to attend sectarian schools under this program. (See prior posting.) The Justice Department said in part:

Today’s filing addresses issues set forth in the Department of Justice’s Guidance on Federal Law Protections for Religious Liberty issued on Oct. 6, 2017, at the direction of President Trump’s  May 4, 2017, Executive Order Promoting Free Speech and Religious Liberty.

AP reports on DOJ's action. [Thanks to Tom Rutledge for the lead.]

Israel's Supreme Court Approves Disputed Sales of Greek Orthodox Church Properties

Jerusalem Post and AFP report on a decision of the Israeli Supreme Court on Monday approving the 2004 sale (or in one case, the 99-year lease) by the Greek Orthodox Church of three properties in the Old City of Jerusalem to the Jewish organization Ateret Cohanim. The goal of Ateret Cohanim is to extend Jewish ownership over property in East Jerusalem by purchasing Palestinian-owned property through front companies. Ateret Cohanim paid over $1.8 million for the properties.  The Greek Orthodox Patriarchate claims that the sales were made by its director of finance, Nicholas Papadimas, without proper authorization. It also claimed that Papadimas was bribed to advance the sales. Disclosure of the sales led to the Church's dismissal of Patriarch Irineos I and his replacement by Patriarch Theophilos III. The 3-judge panel of the Supreme Court affirmed the trial court's decision upholding the legality of the sales.

Two More Suits Challenge Expanded Religious Accommodation For Health Care Providers

Suit was filed yesterday in New York federal district court challenging rules recently adopted by the U.S. Department of Health and Human Services (see prior posting) expanding the protection of conscience rights for health care providers.  The 63-page complaint (full text) in National Family Planning and Reproductive Health Association v. Azar, (SD NY, filed 6/11/2019) alleges that:

The Final Rule encourages and authorizes discrimination by unlawfully granting a wide swath of institutions and individuals broad new rights to refuse to provide health care services and information.

The complaint elaborates:

The Rule will exacerbate existing systemic barriers by endangering Plaintiffs’ members’ ability to provide care to already underserved populations. For example:

• By requiring the absolute accommodation of an employee’s refusal to provide certain information and services, the Final Rule could at any time force Plaintiffs to reduce the availability or scope of services they provide or even eliminate them entirely, particularly in small locations that may rely on a single staff member to perform multiple job functions.
• By prohibiting Plaintiffs from even asking job applicants whether they are willing to perform basic job requirements, and because the Final Rule does not require employees who intend to refuse to so notify their employers or their patients, neither Plaintiffs nor their patients may be aware when a staff member is denying a patient access to needed care or information;
• By prohibiting those of Plaintiff NFPRHA’s members who are state and local governmental Title X grantees from requiring sub-recipients to comply with the statutory and regulatory requirements of Title X’s abortion counseling and referral, the Final Rule will systematically undermine the integrity of the Title X program, further jeopardizing the ability of Plaintiffs’ patients to access necessary health care and make voluntary, informed decisions about their reproductive health.

The ACLU issued a press release announcing the filing of the lawsuit.

Separately, Planned Parenthood filed a similar lawsuit. (Full text of complaint in Planned Parenthood Federation of America, Inc. v. Azar, (SD NY, filed 6/11/2019). Courthouse News Service reports on this lawsuit.

A similar challenge to the new Rule was filed last month by a number of states and cities. (See prior posting.)

During LGBTQ Pride Month, Vatican Issues Document On Gender Theory In Education

The Vatican's Congregation for Catholic Education yesterday issued a 32-page document titled Male and Female He Created Them: Towards a Path of Dialogue on the Question of Gender Theory in Education. (Full text). The document says in part:

There is a need to reaffrm the metaphysical roots of sexual difference, as an anthropological refutation of attempts to negate the male-female duality of human nature, from which the family is generated. The denial of this duality not only erases the vision of human beings as the fruit of an act of creation but creates the idea of the human person as a sort of abstraction who “chooses for himself what his nature is to be. Man and woman in their created state as complementary versions of what it means to be human are disputed. But if there is no pre-ordained duality of man and woman in creation, then neither is the family any longer a reality established by creation. Likewise, the child has lost the place he had occupied hitherto and the dignity pertaining to him”.

According to Vatican News:

The new document is intended as an instrument to help guide Catholic contributions to the ongoing debate about human sexuality, and to address the challenges that emerge from gender ideology.

As reported by CBS News,  the document, issued during LGBTQ Pride Month, was criticized by LGBTQ advocacy groups.

Another Suit Filed Against Masterpiece Cakeshop For Refusal To Create Cakes For LGBT Events

Another lawsuit has been filed against Masterpiece Cakeshop owner Jack Phillips, this time over his refusal on religious grounds to create a pink birthday cake with blue icing for a transgender female customer.  The complaint (full text) in Scardina v. Masterpiece Cakeshop, Inc., (CO dist. Ct., June 5, 2019), contends that the refusal violates Colorado's anti-discrimination and deceptive practices acts. This suit was filed by the aggrieved customer after litigation over the same issue between Phillips and the Colorado Civil Rights Commission was dropped. (See prior posting.)  Last year the U.S. Supreme Court on narrow grounds ruled against the Colorado Civil Rights Commission in its attempt to issue a cease and desist order against Masterpiece Cakeshop for its refusal to provide a wedding cake for a same-sex marriage. (See prior posting.) Christian Post reports on the most recent lawsuit.

Arkansas Supreme Court OKs Limits On Leaders of Prison Religious Services

In Mutaqim v. Lay, (AR Sup. Ct., June 6, 2019), the Arkansas Supreme Court rejected challenges by a Nation of Islam inmate to two separate prison policies. The Court upheld the denial in 2013 to 2015 of several issues of the NOI publication The Final Call because they suggested that readers "rise up and strike out at their oppressors." These were censored to protect prison safety and security. The court also upheld a policy barring religious services from being led by inmates, and allowing them to be led by outsiders only if they are credentialed volunteers who are responsible for the orthodoxy of the religion or sect. NOI volunteers could not be found.  The Court said in part:

During the hearing, ADC’s chaplain testified that this policy is designed to protect prison security and order by preventing the dissemination of unorthodox or heretical views to the respective religion or sect, which could result in violence.  As indicated above, prison security is the most compelling government interest in the prison setting.

Air Force Grants Religious Accommodation To Sikh Airman

In a press release last week, the ACLU announced that for the first time, the U.S. Air Force has granted a religious accommodation to a Sikh active duty airman to allow him to wear a turban, beard, and unshorn hair.  The U.S. Army had previously granted similar accommodations. (See prior posting.)

Cert. Denied In Challenge To "In God We Trust" On Currency

Yesterday the U.S. Supreme Court denied review in New Doe Child #1 v. United States, (Docket No. 18-1297, certiorari denied 6/10/2019). (Order List). In the case, the U.S. 8th Circuit Court of Appeals in interesting opinions rejected a constitutional challenge to the placement of the motto "In God We Trust" on U.S. coins and currency.  (See prior posting.) Washington Times reports on the decision.

Washington Supreme Court OK's Anti-Discrimination Law Enforcement Against Florist Opposed To Gay Marriage

In an important and wide-ranging 76-page opinion yesterday, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner.  This is the second time the case has been before the Washington Supreme Court.  After the first decision, the U.S. Supreme Court granted certiorari, vacated the state court's judgment and  remanded for further consideration in light of the U.S. Supreme Court's Masterpiece Cakeshop decision. (See prior posting.) Yesterday in State of Washington v. Arlene's Flowers , Inc., (WA Sup. Ct., June 6, 2019), in a unanimous decision, the court concluded that the state adjudicatory bodies involved acted with religious neutrality. It refused to allow the challengers to expand their claims to allege selective enforcement based on religion by the Washington attorney general.

The Washington Supreme Court went on to hold that challengers cited no authority to support their argument that the state's public accommodation law protects proprietors of public accommodations to the same extent as it protects their patrons, and that a balancing test should be used. The court then rejected the florist's free speech claims, saying:

The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. 

The Court also rejected challengers' religious free exercise claims under the U.S. and Washington state constitutions. It concluded that even if the state constitution requires strict scrutiny, that test is met:

[P]ublic accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

Seattle Times reports on the decision. A press release by ADF says the floral shop owners will again ask for review by the U.S. Supreme Court. [Thanks to Tom Rutledge for the lead.]

Feds Settle Suit With Old Order Amish Woman Over Photo In Residency Application

According to the Indy Star, government agencies have settled a lawsuit brought by an Old Order Amish couple.  Under the settlement, the wife will be able to become a permanent U.S. resident without submitting photos of herself in the application for residency. She will also be able to cross the border without photographic identification.

Administration Limits Research Using Fetal Cells

Politico reports:

The Trump administration Wednesday imposed new restrictions on federal use of fetal tissue obtained from abortions, barring government scientists at NIH from doing such research, and canceling an existing HIV research contract with the University of California, San Francisco....

“Promoting the dignity of human life from conception to natural death is one of the very top priorities of President Trump’s administration,” HHS said in a statement. “[NIH internal] research that requires new acquisition of fetal tissue from elective abortions will not be conducted.”

From SSRN:

• Angela Carmella, Catholic Thought on the Common Good: A Place for Establishment Clause Limits to Religious Exercise, (University of St. Thomas Law Journal, Vol. 15, No. 3, 2019).
• Bernd M.J.van der Meulen, The Ultimate Truth. Demons, Dogma, Dominance, Definitions and Democracy - Farewell Address, (European Institute for Food Law Work;ing Paper Series 2019/02).
• Sohail Wahedi, The Health Law Implications of Ritual Circumcisions, (Quinnipiac Health Law Journal, Vol. 22, No. 2, 2019).
• Christen Hammock, Mary Doe ex rel. Satan?: Parody, Religious Liberty, & Reproductive Rights,  Columbia Journal of Gender and Law, Forthcoming).
• Carlo Pedrioli, Pope Francis, Poverty, and the Third Persona, (21 Iowa J. Gender, Race & Just. 367 (2018)).
• Michael Schearer, Ideological Origins of William Penn's 'Holy Experiment', (May 5, 2019).
• Jeremy J. Patrick, Evidence of Absence in the Ruddock Report, (Australian Law Journal, Volume 93, Part 9, 2019).
• Caroline Mala Corbin, Opportunistic Originalism and the Establishment Clause, (Wake Forest Law Review, Vol. 53, 2019).
• William E. Forbath, Constitutionalism, Human Rights and the Genealogy of Jewish Liberalism, (Forthcoming, Law of Strangers: Jewish Lawyering and International Legal Thought in Historical Perspective, Eds. James Loeffler, Moria Paz (Cambridge University Press, 2019)).
• Assaf Likhovski, The Eagle and the Dove: Jewish Law Scholars and Roman Law during the Interwar Period,, (in Pensiero giuridico occidentale e giuristi romani: Eredità e genealogie (Pierre Bonin, Nader Hakim, Fara Nasti and Aldo Schiavone eds., Torino: G. Giappichelli, 2019)).
• Noah Chauvin, Establishment Clause Standards and Standing, (April 29, 2019).

Ecclesiastical Abstention Doctrine Applies To Controversy Over Rental of Catholic Community Center

In Sacred Heart Knanaya Catholic Community Center Building Board v. St. Thomas Syromalabar Diocese of Chicago, 2019 IL App (2d) 180792-U (IL App., May 30, 2019), an Illinois appellate court held that the ecclesiastical abstention doctrine applies to a suit against a Catholic diocese by a Catholic community center board for tortious interference with a business relationship. The diocese barred use of the community center by another Catholic church that had contracted to rent the Center for a Spanish Latin Rite Mass.

NOTICE TO READERS REGARDING PUBLICATION SCHEDULE

FROM MAY 23 TO JUNE 10, POSTINGS ON RELIGIOUS CLAUSE BLOG WILL BE INTERMITTENT AND SPORADIC. LOOK FOR MORE REGULAR POSTINGS TO RESUME ON JUNE 11.

Supreme Court Denies Cert In Challenge To Bus Ad Restrictions

The U.S. Supreme Court today denied review in American Freedom Defense Initiative v. Washington Metropolitan Transit Authority, (Docket No. 18-1000, certiorari denied 6/3/2019) (Order List).  In the case, the D.C. Circuit Court of Appeals remanded  a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that decry supposed Sharia adherent Islamists who want to enforce Islamic blasphemy laws in the United States. (See prior posting.)

Supreme Court Denies Stay Sought By Presbyterian Church In Defamation Suit

Today the U.S. Supreme Court in Presbyterian Church v. Edwards, (Docket No. 18A1126, June 3, 2019) (Order List) denied an application to stay enforcement while a petition for certiorari is filed of an order by the Kentucky Supreme Court (see prior posting).  The Kentucky Supreme Court allowed discovery to proceed in a defamation suit against the Presbyterian Church to the extent necessary to determine if the church is entitled to ecclesiastical immunity. The Church claims that the ecclesiastical abstention doctrine precludes this.

Supreme Court Says Title VII Charge-Filing Prerequisite Is Not Jurisdictional

In Fort Bend County v. Davis, (US Sup. Ct., June 3, 2019) today the U.S. Supreme Court in a Title VII religious discrimination case held unanimously that the statutory requirement that an EEOC claim be filed before commencing suit in court is not jurisdictional.  Therefore defendant may forfeit this defense through undue delay in asserting it. Courthouse News Service reports on the decision.

Tax Court Denies Deduction For Evangelist's Expenses

In Oliveri v. Commissioner (US Tax Ct., May 28, 2019), the U.S. Tax Court rejected claims by a Catholic evangelist that the disallowance of a charitable deduction for many of his evangelistic activities violated his rights under the First Amendment and RFRA:

Petitioner contends that respondent is characterizing his evangelism as if it were not a religious activity and that respondent’s characterization violates the First Amendment. Petitioner mischaracterizes respondent’s position, which is that petitioner’s expenses for evangelistic activities are not deductible as charitable contributions under section 170, not that they are not religious activities. Not all religious activities are services “to or for the use of” a religious organization for purposes of section 170....

Petitioner contends that disallowance of his section 170 deductions violates his right to the free exercise of religion by placing a substantial burden on his evangelization, in that it would result in his having less money to evangelize. We disagree. In Hernandez v. Commissioner, 490 U.S. 680, 699 (1989), the Supreme Court said that “we need not decide whether the burden of disallowing the §170 deduction is a substantial one, for our decision in Lee establishes that even a substantial burden would be justified by the ‘broad public interest in maintaining as ound tax system’”. 

The Tax Court also rejected petitioner's claim that "three audits of his Federal income tax returns within 10 years resulted in excessive Government entanglement with his exercise of religion."

Maine Ends Vaccination Exemptions

Last week, Maine's governor signed into law a bill (full text) eliminating religious and philosophical exemptions to vaccination requirements.  ABC13 reports on the new law. [Thanks to Tom Rutledge for the lead.]